The publication of the 2023 Merger Guidelines (MG) by the DOJ and FTC marked a significant event in the expanding influence of economics on public guidance in antitrust. The economic frameworks that are outlined in the MG are not limited to purely horizontal or vertical mergers. The MG more explicitly embrace an approach of assessing risk of harm to competition, which in turn supports the consideration of dynamic theories such as entrenchment or expansion of market power. The MG also elaborate on mergers that involve multi-product firms, platforms, and labor market competition. During this eventful year, the Division also successfully blocked JetBlue’s proposed acquisition of Spirit and obtained conduct relief to protect a specific type of labor market – chicken growers – from anticompetitive conduct by processors who compete for their services.
